[Federal Register Volume 64, Number 97 (Thursday, May 20, 1999)]
[Proposed Rules]
[Pages 27499-27503]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-12629]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
49 CFR Parts 567 and 568
[Docket No. NHTSA-99-5673]
RIN 2127-AE27
Vehicles Built in Two or More Stages
AGENCY: National Highway Traffic Safety Administration (NHTSA), DOT.
ACTION: Notice of intent to form a negotiated rulemaking advisory
committee.
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SUMMARY: NHTSA proposes to establish a Negotiated Rulemaking Committee
to develop recommended amendments to the existing NHTSA regulations
governing the certification of vehicles built in two or more stages (49
CFR Part 567, 568), so that certification responsibilities can be more
equitably assigned among the various participants in the multi-stage
vehicle manufacturing process. The Committee would develop its
recommendations through a negotiation process. The Committee would
consist of persons who represent the interests affected by the proposed
rule, such as first-stage, intermediate and final-stage manufacturers
of motor vehicles, equipment manufacturers, vehicle converters, trade
associations that represent various manufacturing groups, as well as
consumers. The purpose of this document is to invite interested parties
to submit comments on the issues to be discussed and the
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interests and organizations to be considered for representation on the
Committee.
DATES: You should submit your comments or applications for membership
or nominations for membership on the negotiated rulemaking committee
early enough to ensure that Docket Management receives them not later
than June 21, 1999.
ADDRESSES: You should mention the docket number of this document in
your comments and submit your comments in writing to: Docket
Management, Room PL-401, 400 Seventh Street, S.W., Washington, D.C.
20590.
You may call the Docket at 202-366-9324. You may visit the Docket
from 10:00 a.m. to 5:00 p.m., Monday through Friday.
FOR FURTHER INFORMATION CONTACT: For non-legal issues, you may call
Charles Hott, Office of Crashworthiness Standards, at 202-366-4920.
For legal issues, you may call Rebecca MacPherson, Office of the
Chief Counsel, at 202-366-2992.
You may send mail to both of these officials at National Highway
Traffic Safety Administration, 400 Seventh St., S.W., Washington, D.C.
20590.
SUPPLEMENTARY INFORMATION:
I. Regulatory Negotiation
NHTSA intends to use the negotiated rulemaking procedure in
accordance with the Negotiated Rulemaking Act of 1990, Pub. L. 101-648
(NRA) (5 U.S.C. 561, et seq.). The agency will form an advisory
committee consisting of representatives of the affected interests and
the agency for the purpose of reaching consensus on the proposed rule.
The NRA establishes a framework for the conduct of a negotiated
rulemaking and encourages agencies to use negotiated rulemaking to
enhance the informal rulemaking process. Under the NRA, the head of an
agency must consider whether:
There is a need for the rule;
There are a limited number of identifiable interests that
will be significantly affected by the rule;
There is a reasonable likelihood that a committee can be
convened with a balanced representation of persons who (1) can
adequately represent the interests identified; and (2) are willing to
negotiate in good faith to reach a consensus on the rulemaking;
There is a reasonable likelihood that a committee will
reach a consensus on the rulemaking within a fixed period of time;
The negotiated rulemaking process will not unreasonably
delay the development and issuance of a final rule;
The agency has adequate resources and is willing to commit
such resources, including technical assistance, to the committee; and
The agency, to the maximum extent possible consistent with
its legal obligations, will use the consensus of the committee with
respect to developing the rule proposed by the agency for public notice
and comment.
Negotiations are conducted by a committee chartered under the
Federal Advisory Committee Act (FACA) (5 U.S.C. App. 2). The committee
includes an agency representative and is assisted by a neutral
facilitator. The goal of the committee is to reach consensus on the
language or issues involved in the rule. If consensus is reached, the
agency undertakes to use the consensus as the basis of the proposed
rule, to the extent consistent with its legal obligations. The
negotiated rulemaking process does not otherwise affect the agency's
obligations under FACA, the Administrative Procedure Act and other
statutes, including all economic, paperwork and other regulatory
analyses.
NHTSA invites comments on the appropriateness of regulatory
negotiation for a proposed rule on vehicles built in two or more
stages.
II. Subject and Scope of the Rule
A. Need for the Rule
The certification problems of multistage manufacturers have
troubled NHTSA almost since the agency's creation. An early set of
NHTSA regulations on this subject was overturned almost twenty-five
years ago. Rex Chainbelt v. Volpe, 486 F.2d. 757 (7th Circuit 1973;
appeal after remand, Rex Chainbelt v. Brinegar, 511 F.2d 1215 (7th Cir.
1975). To resolve that lawsuit, the agency amended 49 CFR Part 568 to
define ``chassis cabs'' and establish special certification
requirements for chassis cab manufacturers, which are usually large
companies such as General Motors Corporation and Ford Motor Company.
However, the amended regulations do not impose corresponding
certification responsibilities on manufacturers of incomplete vehicles
other than ``chassis cabs.''
A further amendment to 49 CFR Part 567 has become necessary as a
result of another judicial decision that invalidated NHTSA's 1989
amendment of Federal Motor Vehicle Safety Standard (FMVSS) No. 204
(Steering Column Displacement) with respect to light trucks and vans
with gross vehicle weight ratings of up to 10,000 pounds that are
manufactured in two or more stages. National Truck and Equipment
Association v. NHTSA, 919 F.2d 1148 (6th Cir. 1990). A majority of the
court concluded that the challenged rule was not practicable for final
stage manufacturers that cannot ``pass through'' the certification of
the incomplete vehicle manufacturer. The court cited NHTSA's
acknowledgment in the regulatory preamble that most final stage
manufacturers are not capable of performing dynamic testing or in-house
engineering analysis, as well as the fact that ``pass through''
certification is not available under existing regulations unless the
incomplete vehicle is a chassis cab.
In response to the NTEA decision, on December 3, 1991, NHTSA
published a notice of proposed rulemaking (NPRM) (56 FR 61392) to
extend the certification requirements that currently apply only to
manufacturers of chassis-cabs to all incomplete vehicle manufacturers,
and to permit all final stage manufacturers to ``pass through'' the
certification of the incomplete vehicle under certain circumstances.
That NPRM engendered considerable controversy and virtually no support.
In the comments, there was a clear division in positions among the
various segments of the multistage vehicle industry.
On November 17, 1995, NHTSA published a Notice announcing that it
would hold a public meeting to seek information from final stage and
intermediate manufacturers of vehicle built in two or more stages,
manufacturers of incomplete vehicles, and the public on certification
of vehicles that are manufactured in stages and suggestions for action
with respect to NHTSA's regulations and Federal Motor Vehicle Safety
Standards that govern the manufacture of vehicles in stages (60 FR
57694). In the notice, the agency stated its belief that multistage
vehicle certification is an area in which negotiated rulemaking may be
beneficial, and invited comments on the advisability of conducting
negotiated rulemaking in this area.
The public meeting was held on December 12, 1995. Companies, trade
associations, and individuals made presentations at the meeting and/or
submitted written comments for the record. Many of the comments
endorsed using regulatory negotiation for this rulemaking; none opposed
the process. Based on this response, NHTSA has determined that
establishing an ad hoc advisory committee on this subject is in the
public interest.
[[Page 27501]]
B. Issues and Questions To Be Resolved
NHTSA has tentatively identified major issues that should be
considered in this negotiated rulemaking. Listed below are subjects
which NHTSA presently believes the negotiation process should address:
Equitable and effective allocation of certification
responsibility;
Enforcement issues relevant to each stage of
manufacturing;
Costs to regulated parties of testing or certification;
Effects on safety;
Effects on small businesses;
Enforceability against later stage manufacturers of
standards that include dynamic testing;
Feasibility and cost effectiveness of alternate methods
(e.g., testing, computer modeling, or other as-yet-unspecified methods)
to ensure compliance of completed vehicles with requirements of
applicable FMVSS's;
Mechanisms for incorporating alternate methods of ensuring
compliance into these regulations;
Mechanisms for sharing costs of testing;
Requirements tailored to the capabilities and
circumstances of each class of vehicles;
Extended leadtime for implementation of FMVSSs for final-
stage manufacturers;
Recall and warranty responsibilities of manufacturers;
Pass-through certification as a compliance option;
Relative administrative/compliance burdens of
certification on first stage and later stage manufacturers; and
Scope of compliance ``envelopes'' prescribed by first
stage manufacturers and ability of intermediate and final stage
manufacturers to stay within those envelopes.1
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\1\ Compliance envelopes represent the level of certification
attested to by incomplete vehicle manufacturers of chassis cabs.
There are three compliance statements which the first level
manufacturer can make with regard to an incomplete vehicle. The
manufacturer may affix to the vehicle a statement that:
(1) the vehicle, when completed, will conform to the safety
standard if no alterations are made in the identified components of
the incomplete vehicle;
(2) there are specific conditions of final manufacture under
which the manufacturer specifies that the completed vehicle will
conform to the safety standard; or
(3) conformity with the safety standard is not substantially
affected by the design of the incomplete vehicle and no
representation is made as to conformity with that safety standard.
Any safety standards for which the first level manufacturer has
not certified the vehicle must be certified by the final stage
manufacturer, and all other work must be performed within the terms
of the incomplete vehicle manufacturer's certification to allow that
certification to remain valid.
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NHTSA invites comment on whether additional issues should be
addressed by the negotiating committee.
III. Procedures and Guidelines
The following proposed procedures and guidelines will apply to this
process, subject to appropriate changes made as a result of comments on
this Notice or as determined to be necessary during the negotiating
process.
A. Notice of Intent To Establish Advisory Committee and Request for
Comment
In accordance with the requirements of FACA, an agency of the
federal government cannot establish or utilize a group of people in the
interest of obtaining consensus advice or recommendations unless that
group is chartered as a federal advisory committee. It is the purpose
of this Notice to indicate NHTSA's intent to create a federal advisory
committee, to identify the issues involved in the rulemaking, to
identify the interests affected by the rulemaking, to identify
potential participants who will adequately represent those interests,
and to ask for comment on the use of regulatory negotiation and on the
identification of the issues, interests, procedures, and participants.
B. Facilitator
Pursuant to the NRA (5 U.S.C. 566), a facilitator will be selected
to serve as an impartial chair of the meetings; assist Committee
members to conduct discussions and negotiations; and manage the keeping
of minutes and records as required by FACA. The facilitator will chair
the negotiations, may offer alternative suggestions toward the desired
consensus, will help participants define and reach consensus, and will
determine the feasibility of negotiating particular issues.
C. Representation
The Committee will include representatives from NHTSA and from the
organizations and interests listed below. Each representative may also
name an alternate, who will be encouraged to attend all Committee
meetings and will serve in place of the representative if necessary.
The NHTSA representative is the Designated Agency Official (DAO) as
required by FACA (5 U.S.C. 10) and will participate in the
deliberations and activities of the Committee with the same rights and
responsibilities as other Committee members. The DAO will be authorized
to fully represent the agency in the discussions and negotiations of
the Committee.
NHTSA intends to invite the following organizations and interests
to participate in the negotiated rulemaking by identifying an
individual to serve as a member of the Committee. The organizations
listed have been contacted by the facilitator and have indicated a
willingness to serve on the Committee. NHTSA believes that, in addition
to the organizations listed, there may be other interests that should
be included on the Committee.
The organizations and interests that should participate in the
negotiated rulemaking are:
Representatives of large, incomplete vehicle manufacturers
(e.g., Ford Motor Company, General Motors Corporation);
Representatives of specialty domestic manufacturers (e.g.,
Navistar, Freightliner);
Representatives of component manufacturers (e.g., Atwood
Mobile Products, Delphi Chassis Systems, Bornemann Products, Inc.);
National Truck and Equipment Association;
Recreational Vehicle Industry Association;
School Bus Manufacturers Technical Council;
Mark III;
National Automobile Dealers Association;
Veridian Engineering (formerly Calspan);
Association of Fleet Operators;
Paralyzed Veterans of America;
National Mobility Equipment Dealers Association;
Representatives from Consumer Groups.
NHTSA will consider applications for representation from
organizations or interests not appropriately represented by those
listed above. Please identify such organizations and interests if they
exist and explain why they should have separate representation on the
Committee.
D. Applications for Membership
Each application for membership or nomination to the Committee
should include: (i) the name of the applicant or nominee and the
interest(s) such person would represent; (ii) evidence that the
applicant or nominee is authorized to represent parties related to the
interest(s) the person proposes to represent; and (iii) a written
commitment that the applicant or nominee would participate in good
faith. Please be aware that each individual or organization affected by
a final rule need not have its own representative on the Committee and
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that the size of the Committee is limited by statute. Rather, each
interest must be adequately represented, and the Committee should be
fairly balanced.
E. Good Faith
Participants must be committed to negotiate in good faith.
Therefore, it is important that senior officials within each interest
group be designated to represent that interest. No individual will be
required to ``bind'' the interests he or she represents, but the
individual should be able to represent the interest with confidence.
For this process to be successful, the interests represented should be
willing to accept the final Committee product.
F. Notice of Establishment
After evaluating comments received as a result of this Notice,
NHTSA will issue a notice announcing the establishment and composition
of the Committee, unless it determines that such action is
inappropriate in light of comments received. After the Committee is
chartered, the negotiations will begin.
G. Administrative Support and Meetings
Staff support will be provided by NHTSA, and meetings will take
place in Washington, DC.
H. Consensus
The purpose of the Committee is to develop consensus on an outline
for a proposed rule. ``Consensus'' means the unanimous concurrence
among the interests represented on the Committee, unless the Committee
explicitly adopts a different definition.
I. Notice of Proposed Rulemaking
The Committee's objective is to prepare a report containing an
outline of its recommendations for a notice of proposed rulemaking.
This report may also include suggestions for specific preamble and
regulatory language based on the Committee's recommendations, as well
as information relevant to a regulatory evaluation and an evaluation of
the impacts of the proposal on small businesses. To this end, NHTSA
expects the Committee to address cost/benefit, paperwork reduction and
regulatory flexibility requirements. If consensus cannot be achieved
for some issues, the report will identify the areas of agreement and
disagreement, and explanations for any disagreement. NHTSA will use the
Committee report to draft a notice of proposed rulemaking, regulatory
evaluation, and other analyses, as appropriate.
NHTSA will accept the Committee proposal, keeping in mind its
statutory authority and other legal requirements. In the event that the
agency must reject an issue within the proposal, the preamble to a NPRM
addressing the issues that were the subject of the negotiations will
explain the reasons for the agency decision to reject the Committee
recommendations.
J. Committee Procedures
Under the general guidance of the facilitator, and subject to legal
requirements, the Committee will establish detailed procedures for the
meetings. The meetings of the Committee will be open to the public. Any
person attending the Committee meetings may address the Committee if
time permits or file statements with the Committee.
K. Record of Meetings
In accordance with FACA requirements, the facilitator will prepare
minutes of all Committee meetings. These minutes will be placed in the
public docket for this rulemaking.
L. Tentative Schedule
NHTSA plans to convene the first of five monthly meetings
approximately fifteen days after publication of a notice of
establishment of the advisory committee. The date and exact location of
that meeting will be announced in the agency's notice of establishment
of the advisory committee. Meetings are expected to last two to three
days each. The negotiation process will proceed according to a schedule
of specific dates that the Committee devises at its first meeting.
NHTSA will publish a single notice of the schedule of all future
meetings in the Federal Register, but will amend the notice through
subsequent Federal Register notices if it becomes necessary to do so.
The first meeting will commence with an orientation and regulatory
negotiation training program conducted by the facilitator.
IV. Comments
How Do I Prepare and Submit Comments?
Your comments must be written and in English. To ensure that your
comments are correctly filed in the Docket, please include the docket
number of this document in your comments.
Your comments must not be more than 15 pages long. (49 CFR 553.21).
We established this limit to encourage you to write your primary
comments in a concise fashion. However, you may attach necessary
additional documents to your comments. There is no limit on the length
of the attachments.
Please submit two copies of your comments, including the
attachments, to Docket Management at the address given above under
ADDRESSES.
How Can I Be Sure That My Comments Were Received?
If you wish Docket Management to notify you upon its receipt of
your comments, enclose a self-addressed, stamped postcard in the
envelope containing your comments. Upon receiving your comments, Docket
Management will return the postcard by mail.
How Do I Submit Confidential Business Information?
If you wish to submit any information under a claim of
confidentiality, you should submit three copies of your complete
submission, including the information you claim to be confidential
business information, to the Chief Counsel, NHTSA, at the address given
above under FOR FURTHER INFORMATION CONTACT. In addition, you should
submit two copies, from which you have deleted the claimed confidential
business information, to Docket Management at the address given above
under ADDRESSES. When you send a comment containing information claimed
to be confidential business information, you should include a cover
letter setting forth the information specified in our confidential
business information regulation. (49 CFR Part 512.)
Will the Agency Consider Late Comments?
We will consider all comments that Docket Management receives
before the close of business on the comment closing date indicated
above under DATES. To the extent possible, we will also consider
comments that Docket Management receives after that date. If Docket
Management receives a comment too late for us to consider it in
developing a final rule (assuming that one is issued), we will consider
that comment as an informal suggestion for future rulemaking action.
How Can I Read the Comments Submitted by Other People?
You may read the comments received by Docket Management at the
address given above under ADDRESSES. The hours of the Docket are
indicated above in the same location.
You may also see the comments on the Internet. To read the comments
on the Internet, take the following steps:
1. Go to the Docket Management System (DMS) Web page of the
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Department of Transportation (http://dms.dot.gov/).
2. On that page, click on ``search.''
3. On the next page (http://dms.dot.gov/search/), type in the four-
digit docket number shown at the beginning of this document. Example:
If the docket number were ``NHTSA-1998-1234,'' you would type ``1234.''
After typing the docket number, click on ``search.''
4. On the next page, which contains docket summary information for
the docket you selected, click on the desired comments. You may
download the comments. However, since the comments are imaged
documents, instead of word processing documents, the downloaded
comments are not word searchable.
Please note that even after the comment closing date, we will
continue to file relevant information in the Docket as it becomes
available. Further, some people may submit late comments. Accordingly,
we recommend that you periodically check the Docket for new material.
Issued on: May 14, 1999.
L. Robert Shelton,
Associate Administrator for Safety Performance Standards.
[FR Doc. 99-12629 Filed 5-19-99; 8:45 am]
BILLING CODE 4910-59-P
